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Thomas Stays the Course, Scalia Returns to the Fold

A bit lost in last week’s legal news regarding a majority of states now suing over Obamacare, the House voting to repeal Obamacare, and the anniversary of Citizens United, was the first interesting Supreme Court decision of the term. Most notably, Justices Scalia and Thomas continued their valiant struggle to limit the scope of the constitutional misnomer that is “substantive due process” doctrine.

The case was NASA v. Nelson, a suit challenging the background checks for perspective NASA contractors as violating an evanescent constitutional right to informational privacy. The Court ruled unanimously against the challengers, with Justice Alito writing for the majority that, regardless whether such a right exists, it was not violated by the government’s probing questions on sexual history and mental health.

Justices Scalia and Thomas rightly found problems with this essentially useless ruling. Scalia, joined by Thomas, concurred in the result but wrote separately to say that if a right doesn’t exist then the Court should just say so. He would have simply held that there is no constitutional right to “informational privacy”:

I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law…. And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States…. To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

In the course of his typically entertaining opinion we see Scalia back to his old self, caustically lambasting the “infinitely plastic concept of ‘substantive’ due process” and suggesting that it is “past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.”

Indeed, the seemingly oxymoronic concept of substantive due process has received much attention as of late, particularly in last term’s groundbreaking case of McDonald v. Chicago. McDonald, remember, examined whether the individual Second Amendment right articulated in District of Columbia v. Heller applied to the states. I previously blogged about McDonaldhere and here, for example.

McDonald came out the right way but for the wrong reasons. Rather than enforcing the right to keep and bear arms against the states via the Privileges or Immunities Clause, as nearly all constitutional scholars of every ideological stripe contend should be the case, the Court chose to invoke substantive due process. Even Scalia agreed with this perversion, because apparently 140 years of bad precedent overrides originalism or whatever other interpretive theory he claims to support.

Justice Thomas, on the other hand, agreed with the principled approach favored by most scholars (and Cato’s own amicus brief) and wrote separately to advocate overruling the Slaughter-House Cases and reinvigorate the Privileges or Immunities Clause. Curiously, Justice Thomas couldn’t resist filing a separate one-paragraph concurrence in Nelson, seemingly for the sole purpose of citing—and reminding Justice Scalia of—his McDonald concurrence.

After all, Scalia is often regarded as the font of originalism. In reality, he has proven himself to be an originalist of convenience, accepting corrupt interpretations when the mood strikes him. During oral arguments in McDonald, for example, Scalia mocked attorney Alan Gura for daring to make an originalist argument that would overturn an old precedent. Why challenge the substantive due process doctrine, wondered Scalia, when “even I have acquiesced to it?”

Scalia’s faint-hearted originalism does a disservice to that jurisprudential method. With his acerbic wit, infectious personality, and unrivaled rhetorical skills, Scalia has become the poster-boy for originalism. In response, the academic elite—who overwhelmingly reject originalism—focus on every Scalia opinion, hoping to catch a glimpse of the true justice who uses originalism to hide decisions often based largely on policy preferences.

Indeed, given Scalia’s pointed and insightful prose, there is always an opportunity to hoist him by his own petard. In McDonald, for example, it was Scalia who, to use his own Nelson lines, “invoked the infinitely plastic concept of ‘substantive’ due process,” which of course “does not make this constitutional theory any less invented.” For more on this, see “Judicial Takings and Scalia’s Shifting Sands,” the law review article I recently published with my colleague Trevor Burrus—in which we criticize Scalia’s conflicting views on constitutional fidelity in two cases from last term, McDonald and Stop the Beach Renourishment.

Recall that originalism involves a jurist’s resisting personal biases by trying to maintain fidelity to the very document that gives him his job. This highly textualist approach is what makes Justice Thomas arguably the most predictable justice in the history of the Court. And in the law, predictability is a good thing. Underscoring this point is the concern about Justice Scalia’s vote in the Obamacare litigation—because of his concurring opinion in the medicinal marijuana case of Gonzales v. Raich—while Justice Thomas’s vote is assumed to be in hand. (Precisely because Scalia is somewhat outcome-oriented, however, I personally don’t share that concern.)

I just hope that going forward, Justice Scalia will have the same thing for breakfast that he did the morning NASA v. Nelson came down.

H/t to my sometimes collaborator Josh Blackman; head over to his spectacular blog to read more extensive analysis. And thanks to Trevor Burrus for his help with this post.